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Balancing of competing rights through sustainable development: role of Indian judiciary

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Abstract

Sustainable development underlines strong bias for economic development and essentially promotes an idea that professes salvation by technology. Careful research has already revealed that this prophesy stands on a shaky and uncertain ground. The institutionalisation of the concept of sustainable development has been employed to forge a balance between the need to live within ecological limits and the agenda of progress. The Apex Court cemented the concept into a right framework by reading it as part of ‘right to life’ under the Constitution. This article, therefore, explores the role of judiciary, particularly in balancing competing rights between development and environment while using sustainable development as principal decisive factor. This article explores the juridification of ‘sustainable development’ in the Indian legal landscape. Further, it attempts to identify judicial intervention in different phases from introducing the concept to further cementing it in the fabric of environmental jurisprudence in order to draw a balance between development and environment. In conclusion, it enjoins immense trust on the judiciary in balancing the competing interest by progressive application of the concept of sustainable development in the backdrop of new-age environmental challenges.

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Notes

  1. See RACHEL CARSON, SILENT SPRING, (40th ed. 2003).

  2. See JOHN KENNETH GALBRAITH, THE AFFLUENT SOCIETY (40th ed. 1998).

  3. See JOHN DREXHAGE & DEBORAH MURPHY, SUSTAINABLE DEVELOPMENT: FROM BRUNDTLAND TO RIO 7 (2010).

  4. Climate change, ozone depletion and hazardous substance were posing danger. They were addressed through series of international initiatives. The Montreal Protocol on Substances that Deplete the Ozone Layer (a protocol to the Vienna Convention for the Protection of the Ozone Layer) in 1987 and the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal in 1989 subsequently addressed the problems of ozone layer and transboundary movements of hazardous wastes. Climate change was addressed after few years by the United Nations Framework Convention on Climate Change in 1992.

  5. World Comm’n on Env’t & Dev. [WCED], Our Common Future, U.N. Doc. A/42/427 (Aug. 4, 1987).

  6. In an annex to their 1989 Blueprint for a Green Economy, David Pearce and his colleagues catalogued twenty-five definitions of sustainable development. See DAVID PEARCE ET AL., BLUEPRINT FOR A GREEN ECONOMY (1989).

  7. Three major outcomes of Rio Summit were the UN Framework Convention on Climate Change (UNFCCC), the Convention on Biological Diversity (CBD) and Agenda 21. In a way many expected that Rio would provide significant progress in terms of binding obligations towards environmental conservations. However, it failed to deliver as most of the obligations remained recommendatory in nature and were reflection of intense negotiation and compromise between developed and developing nations. See United Nations Conference on Environment and Development, Agenda 21, U.N. Doc. A/CONF.151/PC/100/Add. 1 (1992) [hereinafter Agenda 21].

  8. Id.

  9. See United Nations Millennium Declaration, G.A. Res. 55/2, at 4, U.N. GAOR, 55th Sess., Supp. No. 49, U.N. Doc. A/55/49 (Sept. 8, 2000) [hereinafter U.N. Millennium Declaration].

  10. The study was a part of the Sustainable Development in the 21st century (SD21) project. See FELIX DODDS ET AL., REVIEW OF IMPLEMENTATION OF AGENDA 21 AND THE RIO PRINCIPLES: SYNTHESIS (2012).

  11. Indian Council for Enviro-Legal Action v. Union of India & Ors., (1996) 5 S.C.C. 281 [hereinafter Coastal Regulation Zone Case]; Indian Council for Enviro-Legal Action v. Union of India & Ors., 1996 3 S.C.C. 212; Vellore Citizens Welfare Forum v. Union of India & Ors., A.I.R. 1996 S.C. 2715; S. Jagannath v. Union of India & Ors., A.I.R. 1997 S.C. 811.

  12. Orissa Mining Corporation Ltd. v. Ministry of Environment and Forest & Ors., (2013) 6 S.C.C. 476 [hereinafter Orissa Mining Corporation Case].

  13. After almost two decades of active integration, interpretation and expansion of the core idea of sustainable development there is hardly any scope for debate on the process of internalization of certain principle. Albeit, one should take pride in Apex Court’s approach of looking through concave lenses, particularly in an era when country was hit by the wave of unbridled economic growth. See Saptarishi Bandopadhyay, Because the Cart Situates the Horse: Unrecognized Movements Underlying the Indian Supreme Court’s Internalization of International Environmental Law, 50 INDIAN J. INT’L L. 1 (2010).

  14. See Jonathan M. Harris, Sustainability and Sustainable Development, INTERNATIONAL SOCIETY FOR ECOLOGICAL ECONOMICS (2003), http://isecoeco.org/pdf/susdev.pdf (last visited Dec. 15, 2014).

  15. In economics, time preference (or "discounting") is the relative valuation placed on a good at an earlier date compared with its valuation at a later date. There is no absolute distinction that separates "high" and "low" time preference, only comparisons with others either individually or in aggregate. Someone with a high time preference is focused substantially on his well-being in the present and the immediate future relative to the average person, while someone with low time preference places more emphasis than average on their well-being in the further future.

  16. Böhm-Bawerk cited three reasons for this difference in value. First of all, in a growing economy, the supply of goods will always be larger in the future than it is in the present. Secondly, people have a tendency to underestimate their future needs due to carelessness and short-sightedness. Finally, entrepreneurs would rather initiate production with goods presently available, instead of waiting for future goods and delaying production. See generally EUGEN VON BÖHM-BAWERK, CAPITAL AND INTEREST: A CRITICAL HISTORY OF ECONOMICAL THEORY (1890).

  17. The root of time-preference in Reisman's view is an internal risk premium that is specific to the owner of the goods, in contrast to an external risk premium that is demanded when the owner invests them in a production process or lends them to another. He then points out that the scarcity of capital combined with the uncertainties he raises, means that time preference is unavoidable and hence a minimum rate of return on that capital (such as in interest and normal profit) is always going to be required by suppliers of capital. See GEORGE REISMAN, CAPITALISM: A TREATISE ON ECONOMICS 55,56 (1998).

  18. This observation has been observed in behavioral economics, See LUDWIG VON MISES, HUMAN ACTION: A TREATISE ON ECONOMICS 479-520 (4th ed., 1963).

  19. See generally Herman E. Daly, Operationalizing Sustainable Development by Investing in Natural Capital, Investing in Natural Capital, in Investing, in NATURAL CAPITAL: THE ECOLOGICAL ECONOMICS APPROACH TO SUSTAINABILITY 23 (Ann Marie Johnson ed., 1994).

  20. This would imply that the different kinds of capital are perfect substitutes, at least within the boundaries of current levels of economic activity and resource endowment. See Robert Goodland & Herman Daly, Environmental Sustainability: Universal and Non-Negotiable, 6 ECO. APP. 1003 (1996).

  21. Id.

  22. Thus, oil may be depleted as long as the receipts are invested in other capital elsewhere (e.g. in human capital development or in renewable energy resources) but in addition, efforts should be made to define critical levels of each type of capital, beyond which concerns about sustainability could arise and these should be monitored to ensure that the patterns of development do not promote the total decimation of one kind of capital no matter what is being accumulated in other forms of capital. Id.

  23. Id.

  24. A saw mill i.e. human-made capital is worthless without the complimentary natural capital of forest. The same logic would argue that if there are to be reductions in one kind of educational investment they should be offset by other kinds of education, not by investments in roads. Id.

  25. See JEFFREY A. MCNEELY, ECONOMICS AND BIOLOGICAL DIVERSITY: DEVELOPING AND USING ECONOMIC INCENTIVES TO CONSERVE BIOLOGICAL RESOURCES 2 (1988).

  26. See Goodland and Daly, supra note 20.

  27. This approach is criticized by Beckerman who rejects the concept of sustainability in general. See Wilfred Beckerman, Sustainable Development: Is it a Useful Concept?, 3 ENV. VAL. 191 (1994). A defense of weak sustainability is offered by El Serafy. See Salah El Serafy, In defence of weak sustainability: A response to Beckerman, 5 ENV. VAL. 75 (1996). See JOHN GOWDY & SABINE U O'HARA, ECONOMIC THEORY FOR ENVIRONMENTALISTS (1995) (Limitations of the weak sustainability concept are discussed). See Harris, supra note 14, at 4.

  28. See Robert Costanza & Herman E. Daly, Natural Capital and Sustainable Development, 6 CONSV. BIO. 37 (1992).

  29. See Harris, supra note. 14, at 5.

  30. J.C. Galstaun v. Dunia Lal Seal, (1905) 9 C.W.N. 612.

  31. The same is also recognized in our environmental statute such as Water Act (Prevention and Control of Pollution) Act, 1974 and Air (Prevention and Control of Pollution) Act, 1981.

  32. Rural Litigation & Entitlement Kendra v. State of Uttar Pradesh, A.I.R. 1985 S.C. 652.

  33. M.C. Mehta v. Kamal Nath, (1997) 1 S.C.C. 388.

  34. A.I.R. 1999 S.C. 812 & A.I.R. 2001 S.C. 787.

  35. A.I.R. 1999 S.C. 3345.

  36. A.I.R. 2001 S.C. 184.

  37. A.I.R. 2004 S.C. 1834.

  38. A.I.R, 2004 S.C. 867.

  39. Tehri Bandh Virodhi Sangrash Samiti v. State of Uttar Pradesh, (1992) Supp. 1 S.C.C. 44.

  40. (2004) 6 S.C.C. 402.

  41. (2005) 10 S.C.C. 510.

  42. (2006) 6 S.C.C. 371.

  43. (2006) 3 S.C.C. 549.

  44. (2011) 7 S.C.C. 338.

  45. (2012) 7 S.C.C. 407.

  46. Supra note 12, ¶ 55.

  47. Dinah Shelton, Environmental Justice in a Post Modern World, in ENVIRONMENTAL JUSTICE AND MARKET MECHANISM (Klauss Bosselmann & Benjamin J. Richardson eds., 1999).

  48. S.P. Gupta v. President of India and Ors., A.I.R. (1982) S.C. 149.

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  1. Rajiv Gandhi School of Intellectual Property Law, Indian Institute of Technology Kharagpur, Kharagpur, India

    Arindam Basu & Uday Shankar

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Basu, A., Shankar, U. Balancing of competing rights through sustainable development: role of Indian judiciary. Jindal Global Law Review 6, 61–72 (2015). https://doi.org/10.1007/s41020-015-0003-6

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